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OLEJNICZAK v. E.I. DU PONT DE NEMOURS AND CO.

August 16, 1999

GERALD P. OLEJNICZAK AND SANDRA OLEJNICZAK, PLAINTIFFS,
v.
E.I. DU PONT DE NEMOURS AND COMPANY, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

INTRODUCTION

Plaintiffs Gerald P. Olejniczak ("Olejniczak") and his wife, Sandra Olejniczak, New York state residents, commenced this action in New York state court in December of 1995, to recover for injuries incurred by Olejniczak when he allegedly slipped and fell at a plant operated by defendant E.I. du Pont de Nemours and Company ("DuPont"), a Delaware corporation. DuPont removed the action to this court on February 7, 1996, on the basis of diversity jurisdiction. Following completion of pretrial discovery, a non-jury trial was held in December of 1998 and January of 1999.

The Court heard the testimony of approximately sixteen witnesses over fifteen days of trial. The parties submitted proposed findings of fact and conclusions of law, and the Court heard summations on March 25, 1999. For the reasons discussed below, the Court finds that judgment shall be entered in favor of defendant DuPont. The following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

I. Events of January 19, 1994

At the time of the events in question, Olejniczak was a truck driver employed by Praxair, Inc., a chemical company. Trial Transcript ("Tr.") 90. Praxair supplies DuPont with liquid nitrogen, which DuPont uses at its plant in Tonawanda, New York. This relationship between Praxair and DuPont is governed to some extent by an agreement signed by DuPont and Praxair's corporate predecessor, Union Carbide Corporation's Linde Division, on May 24, 1979.*fn1 See Plaintiff's Exhibit ("P.Ex.") 1. On January 19, 1994, Olejniczak set out from Praxair to make a delivery of nitrogen to DuPont's Tonawanda plant. Tr. 261

Olejniczak testified that he fell while at DuPont's plant that day. There were no other witnesses to the fall. Thus, the following paragraphs set forth Olejniczak's account of the circumstances of the fall.*fn2

According to Olejniczak, he arrived at the DuPont plant at approximately 11:00 a.m.*fn3 He pulled his tanker truck up onto the concrete pad upon which DuPont's nitrogen tank is located. Tr. 270, 682. As it was an extremely cold winter day, he put on a parka and a pair of overboots before leaving the cab of his truck. Tr. 594-95. He informed an unidentified DuPont employee in the control room near the nitrogen tank that he was there to deliver nitrogen and then hooked up the lines from his truck to the nitrogen tank. Tr. 683. An unidentified DuPont lab technician came out to the truck, did routine testing on the contents of the tanker truck, and left.

Olejniczak testified that he then tried to unload the nitrogen but was unable to operate the pumping system, presumably because of the extremely cold temperatures. Tr. 685. He entered the control room, called Praxair, and discussed with an unidentified Praxair employee the problem he was having unloading the nitrogen. Tr. 686. Olejniczak then went back out to the truck, again tried to unload the nitrogen, and again was unsuccessful. Tr. 686-87. He then returned to the control room and called Praxair a second time. Tr. 687. The unidentified Praxair employee instructed Olejniczak to ask a DuPont employee if he could use a steam hose to heat up the lines on the truck. Tr. 687.

Pursuant to these instructions, Olejniczak asked the control room operator if he could use the steam hose DuPont kept near the nitrogen tank. Tr. 688. The control room operator, whose name Olejniczak cannot recall, agreed to allow Olejniczak to use the steam hose, went outside with him, and hooked up the hose for him. Tr. 688. Olejniczak wedged the steam hose into the back of the tanker, where the valves were located, and for some time directed the steam at the back of the tanker. Tr. 688-89. When this method proved unsuccessful, Olejniczak took the hose and walked up and down the side of the tanker while spraying it with steam to try to heat up the lines to allow the nitrogen to flow through them. Tr. 690.

It was at this time that Olejniczak claims that he fell. At trial, Olejniczak described the accident as follows:

  At one point it felt like the hose had gotten hooked
  on something. I turned to see what it was, and I
  noticed that an area back towards the end of the hose
  had melted into the ice and the hard

  packed snow. I turned around and I gave it a little
  pull or tug, and that's when my feet came from
  underneath me, because I was standing on ice and hard
  packed snow. And I went right down into a sitting
  position.

Tr. 599-600. Olejniczak testified that when he fell he felt a "sharp jolt" and a "slight twinge in his back." Tr. 600. After pulling himself up, he went back into the control room. Tr. 605. Olejniczak called Praxair again, told the unidentified person he was speaking to that he had fallen, and was instructed to bring the truck back to Praxair. Tr. 608. According to plaintiff, he also informed an unidentified person at DuPont that he had fallen, and that person "turned around and just walked away from me." Tr. 609. Olejniczak then returned to his truck and drove back to the Praxair facility.

Olejniczak testified that when he left DuPont it was approximately 2:15 p.m. Tr. 275. Thus, he was at the DuPont plant for about three hours and fifteen minutes that day. Tr. 275.

II. Olejniczak's Credibility

As the trier of fact, the Court must assess the credibility of the witnesses at trial. Here, Olejniczak's credibility is of pivotal importance; as his accident was unwitnessed, and there are no contemporaneously created reports documenting the accident, he is the sole source of information about the accident. After observing Olejniczak testify over the course of several days, the Court finds that Olejniczak is not a wholly credible witness.

The Court bases this finding on several facts. First, during the course of the trial, Olejniczak admitted that he had lied under oath during his deposition. For example, when asked at deposition whether he had ever been arrested, he responded that he had not. Tr. 666. At trial, however, he testified that he had been arrested once and admitted that his deposition testimony was not true. Tr. 665-66. Similarly, Olejniczak admitted that he lied at his deposition when he denied ever being on probation or ever appearing before family court. Tr. 667-68. The Court, of course, is hesitant to credit a witness who admits to having lied under oath. Moreover, to explain why he had lied at his deposition, Olejniczak stated that "[i]t was none of her [defendant's counsel's] business, because it did not have anything to do with my accident." Tr. 666. This explanation causes the Court to be wary to credit Olejniczak's testimony, as it evidences a belief by Olejniczak that he was free to pick and choose when he would tell the truth under oath and when he would not.

Olejniczak also appeared to be less than forthcoming regarding prior accidents and injuries. On Friday, December 4, 1998, Olejniczak was questioned on direct examination about his various prior injuries. After Olejniczak had described several injuries, plaintiffs' counsel asked him whether he had sustained any other injuries prior to the date of the accident, to which he responded that he had not. Tr. 227-28. Counsel for plaintiffs then asked Olejniczak whether he had ever sustained any injuries to his lower back. Olejniczak again replied that he had not. Tr. 228. At that point, counsel for defendant asked the court reporter to mark that part of the record. The following Monday, December 7, 1998, when Olejniczak resumed his testimony, he testified that "over the weekend I had remembered a few facts that I forgot to tell you on questioning me about injuries." Tr. 291. Olejniczak then went on to reveal several more injuries he had sustained, including one injury to his back. Tr. 295. Olejniczak testified that he had spoken to his mother over the course of the intervening weekend, and that she had reminded him of those injuries. Tr. 291. It appeared to the Court, however, that after Olejniczak heard defendant's counsel's request to mark the record, Olejniczak reconsidered his initial hesitance to truthfully reveal all his prior injuries.

Further, Olejniczak's testimony was not altogether credible with respect to events on the day of the accident. When asked at his deposition what caused his feet to come out from under him, Olejniczak responded, "I don't know. They just did." Tr. 715. Later, at trial, Olejniczak answered the same question differently, stating, "I was standing on hard pack ice, snow and ice. It was slippery and that's what really caused me to fall." Tr. 714. The Court finds this change of testimony highly suspect.*fn4 Moreover, throughout the course of his trial testimony, Olejniczak repeatedly described the ground conditions with the phrase "hard packed snow and ice." See, ...


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